Daniel Penny Arraigned on Manslaughter Charge in Jordan Neely’s Killing (2023)

Daniel Penny, who while riding the subway last week choked Jordan Neely, a homeless man, to death, was arraigned in Manhattan Criminal Court Friday on a charge of second-degree manslaughter, taking his first formal steps as a defendant in a case that has stunned New York City.

Mr. Penny, handcuffed and dressed in a dark gray suit and white dress shirt, stood straight and still before the judge, Kevin McGrath. He did not enter a plea to the charge, as he has yet to be indicted by a grand jury, and spoke only to answer the judge’s questions and acknowledge that he would next appear in court on July 17. He was released after posting bail.

The Manhattan district attorney, Alvin L. Bragg, said in a statement that the arrest of Mr. Penny, 24, a Marine veteran, had come after many witness interviews, a review of photos and video and discussions with the medical examiner’s office, which had ruled Mr. Neely’s death a homicide.

“Jordan Neely should still be alive today, and my thoughts continue to be with his family and loved ones as they mourn his loss,” Mr. Bragg said.

Mr. Penny encountered Mr. Neely, 30, on a northbound F train on May 1 and held him in a chokehold for several minutes, killing him. Witnesses said that Mr. Neely, who had a history of mental illness, had been acting in a “hostile and erratic manner” toward other passengers, according to the police. But there is no indication that he physically attacked anyone before Mr. Penny began choking him.

Joshua Steinglass, the lead prosecutor, said in court that Mr. Neely had boarded the train at the Second Avenue station. “Several witnesses observed Mr. Neely making threats and scaring passengers,” Mr. Steinglass said.

Mr. Penny approached Mr. Neely from the back, “placed him in a chokehold, taking him down to the ground” and held him “for several minutes” until the train arrived at the next station, Mr. Steinglass said. He emphasized that Mr. Penny had continued to choke Mr. Neely even after he stopped moving. The chokehold was captured in a four-minute video.

The police interviewed Mr. Penny the night of the killing, but released him. A week and a half later, the Manhattan district attorney’s office confirmed that it planned to charge Mr. Penny. On Friday, Mr. Penny surrendered at the Fifth Precinct around 8 a.m.

Mr. Kenniff and another of Mr. Penny lawyer’s, Steven M. Raiser, said in a statement Thursday that they were “confident that once all the facts and circumstances surrounding this tragic incident are brought to bear, Mr. Penny will be fully absolved of any wrongdoing.”

In the days after Mr. Neely’s killing, many city leaders, politicians and advocates for New Yorkers struggling with mental illness and homelessness had called for Mr. Penny’s arrest.

They said the killing of a Black man by a white attacker — and the lack of immediate consequences — highlighted the racism of the legal system and the failure to care for the city’s most vulnerable residents.

“Disparities in how people are treated by the criminal justice system, especially Black people and other people of color, are a reality that our city and this nation must acknowledge and confront,” said the City Council speaker, Adrienne Adams, in a Friday statement.

“Systemic racism that robs us of our basic humanity in life and death should no longer be denied, after being on full display for the past 11 days.”

At a news conference Friday, Dante Mills, a lawyer for Mr. Neely’s family, said that the prosecutor’s office had called them on Tuesday to offer condolences.

“We said thank you for your condolences, but we want an arrest,” he said, adding, “We’re closer now to justice than we were a week ago.”

Advocates and some Democratic politicians had also criticized Mayor Eric Adams for his muted initial response, before he said in a speech Wednesday that Mr. Neely’s “life mattered.”

After the district attorney’s office said Thursday that it planned to charge Mr. Penny, Mr. Adams said: “I have the utmost faith in the judicial process, and now justice can move forward against Daniel Penny.”

Some conservative commentators have defended Mr. Penny. Laura Ingraham, a Fox News host, said that he had “stepped in to protect himself and those around him. A tragic accident happened as a result.”

Mr. Penny’s lawyers launched a campaign for his legal defense on a Christian crowdfunding platform, GiveSendGo, where right-wing causes have found support. As of Friday, the campaign had raised more than $400,000 for Mr. Penny.

The man he killed, Mr. Neely, had been a subway performer known for his impersonation of Michael Jackson. In recent years, he appears to have experienced severe mental illness.

He had hundreds of encounters with workers who try to help homeless people on the subways, according to an employee of the Bowery Residents’ Committee, which has a city contract to do that work. He was on the city’s so-called “Top 50” list, a roster of the homeless people whom officials consider most urgently in need of assistance and treatment.

Mr. Neely had been arrested more than three dozen times. Many arrests were for minor crimes like turnstile-jumping or trespassing, but at least four were on charges of punching people, two in the subway system.

But his fellow passengers on May 1 would have had no knowledge of his past. Juan Alberto Vazquez, a freelance journalist who recorded the video, recalled that Mr. Neely had said that he was hungry and thirsty. “‘I don’t mind going to jail and getting life in prison,’” he said, according to Mr. Vazquez. “‘I’m ready to die.’”

Pressed for action in the days after the killing, Mr. Bragg’s office urged patience, saying it was examining the available evidence. The wait was typical of the district attorney, who tends to take the necessary time to deliberate on legal matters.

But last summer, the office did act quickly, charging a bodega clerk who stabbed an attacker with murder, only to drop the charge after weeks of outcry. That case may have informed the caution in regard to Mr. Penny.

Mr. Bragg and Mr. Penny’s lawyer have a history: Mr. Kenniff was Mr. Bragg’s Republican opponent during the 2021 campaign for district attorney.

Mr. Kenniff said during the race that he believed in “broken windows” policing, arguing that harsher treatment of petty offenses would improve safety. Mr. Bragg has pushed for alternatives to incarceration, and said that people like Mr. Neely need more help than punishment.

In Mr. Penny’s case, the charge of second-degree manslaughter, also known as reckless homicide, will require prosecutors to prove that he caused Mr. Neely’s death and did so recklessly, meaning that he knew that the chokehold could kill.

In a murder case, prosecutors would likely have had to show that Mr. Penny had intended to cause Mr. Neely’s death or acted with “depraved indifference,” which could have been a difficult standard to meet.

If convicted, Mr. Penny could spend up to 15 years in prison.

Mr. Penny’s lawyers will likely argue that the force he used was justified, given the threat that he believed Mr. Neely posed. Prosecutors will have to prove that Mr. Penny used deadly force without reasonably believing that Mr. Neely was doing the same, or was about to.

It is unclear whether Mr. Penny’s lawyers would seek to introduce Mr. Neely’s criminal history at trial, or whether a judge would permit that. The lawyers might argue that the history could make the danger that Mr. Neely posed clear.

Prosecutors could counter that, no matter what Mr. Neely was doing, his history could not have been known to Mr. Penny as he applied the fatal chokehold.

Andy Newman, Lauren McCarthy and Liset Cruz contributed reporting.